Back in January, several participants on MOJ began a thread which took up the question of what it means to be a Catholic law school.I very much wanted to participate in the discussion at the time but resisted doing so because I knew that I had an article coming out on the subject in the very near future.I thought that it didn’t make any sense to simply repeat on the blog what I was about to say in print.Recently, and perhaps providentially, a new but related thread has begun on the blog which discusses the place of a law school in a Catholic university, just as my article has come to print.I have collected the posts from these threads in a file Download catholic_legal_education.doc .

The article is entitled “Justice and Jesuit Education:A Critique” and it appears in the right column of MOJ under my name.The piece is part of special faculty symposium issue of the

Loyola

University

Chicago

Law Journal on the subject of “justice.”The entire issue is available online here.

In the piece I note that Jesuit law schools seek to distinguish themselves from other schools by defining their special mission as “the promotion of justice.”References to this goal and the related goal of forming “men and women for others” litter the mission statements and other self-descriptions of these institutions.

The problem is that these schools almost invariably point to the clinical opportunities that they make available to students as proof of their commitment to justice and the fulfillment of their mission.As I understand it, clinical legal education is a necessary component of Jesuit identity, but not a sufficient one.Clinical education is in many ways peripheral to the academic enterprise.At most, only one of every three law students goes through some sort of clinical program, thus it cannot be the means whereby justice is promoted throughout the student body.Further, if clinical education is the defining feature of Jesuit legal education, then the identity of Jesuit law schools is in no way distinctive since every law school in the country offers some such program, and indeed, many secular schools are superior to their Jesuit counterparts in the clinical opportunities they afford to students.

Moreover, I argue, that to the extent that students do learn about justice in clinical settings they learn that justice is something to be felt and intuited rather than something which can be thought and reasoned and argued about.They learn either that justice is an emotional response to a set of facts or a collection of ad hoc preferences in favor of this case or that.Thus, judged by the very criteria for Jesuit identity that Jesuits set for themselves, Jesuit legal education must be judged a failure, not as legal education but as Jesuit education.

In its place, I argue that the one essential, non-negotiable feature that a Catholic and Jesuit law school must have in order to be deserving of the name is to bring the Catholic intellectual tradition to bear on questions of law and justice.This must be done both in the classroom through the law school’s curriculum and in the research and other intellectual work supported by the school.A law school is, after all, part of a university, and a university is an intellectual enterprise.Every academic unit which makes up the university must contribute to this enterprise through its particular discipline.

In this regard, it was surprising for me to learn in reviewing the curricular requirements for each of the country’s fourteen Jesuit sponsored law schools that none of them require a course in jurisprudence.Indeed, it is entirely possible for a student to graduate from a Jesuit law school without ever having thought seriously about the nature of justice and its meaning. One might argue that a thorough and rigorous encounter with these questions can take place even absent such a course, but such a claim strikes me as disingenuous:Like those law schools who claim that teaching a course in legal ethics is unnecessary because students learn legal ethics through the “pervasive method,” being exposed to it in every substantive course offered by the school.

Even better, I would suggest that we ask our students what their experience of Jesuit legal education has been and the role that serious discussions about the nature of justice has played in that experience.From my own experience, I strongly suspect that the answer will not be what the authors of Jesuit law school promotional literature want to hear.

I would, however, enjoy hearing from you what you think about the article.

A friend at the Times and Seasons blog was kind enough to point me to this very detailed post, by Professors Vikram Amar and Alan Brownstein (both very reasonable and respected scholars), about H.R. 27, the "Job Training Improvement Act" recently passed by the House. "If enacted into law," they write, "this bill will allow religious organizations that receive federal funding to provide social services to the needy to discriminate on the basis of religion in hiring employees to staff these federally-funded programs."

They continue:

H.R. 27 - like previous job training bills -- includes a civil rights provision prohibiting grantees who receive federal funds from discriminating on the basis or race, gender, religion and other listed characteristics. But the bill then adds an exception to this provision, permitting religious providers to discriminate on the basis of religion in hiring.

Amar and Brownstein believe that H.R. 27 violates the First Amendment's Establishment Clause, "as that Clause has been construed by the Supreme Court." (That is, not the *real* Establishment Clause. Sorry. I couldn't resist.) "It is unconstitutional for the government to allow religious providers receiving direct grants to discriminate on the basis of religion in hiring, when the employees who are being hired are paid out of public funds to provide public services and benefits in government-funded programs."

I'm open to the argument that, as Amar and Brownstein contend, H.R. 27 is hard to square with Justice O'Connor's opinion in the Mitchell v. Helms case, where she insisted that, notwithstanding the neutrality of a particular funding program, grants of direct aid simply cannot be used for religious purposes. That said, I'm not sure what this conflict tells me -- if anything -- about the wisdom or morality of permitting religious institutions that deliver federally funded social services to "discriminate" on the basis of religion (or, as one might put it, to "protect and maintain their own integrity and identity while at the same time delivering a service that promotes the common good").

I suppose my primary, and perhaps more pedestrian, concern has to do with the use of the word "discrimination" to describe "religious-mission-sensitive hiring" by religious institutions. I recognize that, in a sense, the word fits; at the same time, particularly in the context of civil-rights legislation (like H.R. 27), the word "discrimination" almost always carries with it the implied modifier, "invidious." The premise of Amar's and Brownstein's claims, it seems to me, is that H.R. 27 would permit federally funded agencies to do something "bad" with federal money. And, that would be bad.

But why, exactly, is it "bad" for religious institutions to engage in religious-mission-sensitive hiring? Putting aside Justice O'Connor's views and the state of Establishment Clause doctrine for the moment, why should the possibility that a religious institution -- which is, let us assume, providing a social service efficiently and effectively, and in a "non-discriminatory" way, to the needy among us -- might want to retain, as it provides this valuable service to the common good, its religious identity and integrity bother us at all?

The freedom of religion case in which the Supreme Court just granted review -- Gonzalez v. O Centra Espirita Beneficiente Uniao do Vegetal [UDV] -- is an extremely important one for the freedom of all faiths in America. The case concerns the interpretation of the 1993 Religious Freedom Restoration Act (RFRA), in which Congress required that before a law can be applied to "substantially burden" sincere religious conduct, that application must be justified by a "compelling" governmental interest and be the "least restrictive means" of achieving that interest. RFRA was a response to Supreme Court precedent stating that a law that is "neutral and generally applicable" can be applied to suppress religious conduct no matter how serious the burden on religion and how minimal the need for regulation. Under the principle that RFRA reversed, a dry county in Oklahoma could prohibit the mass, no questions asked, and generally applicable sex-discrimination laws could be applied to force the Catholic Church to ordain women as priests. Although RFRA was struck down in 1997 as applied to state and local laws, it remains valid as a limit on federal laws and regulations that restrict religious freedom.

In UDV, the government sought to prohibit the consumption and importation of a tea used in the central ritual act of UDV worship services, on the ground that the tea contained a hallucinogenic substance listed under federal drug laws. The UDV, the tiny American offshoot of an established Brazilian religion, obtained an injunction against the government's actions, based on evidence that the use of the tea would not create dangers of health hazards or drug trafficking, because (among other things) the church insisted that members limit their use to the worship service and because the unpleasant taste of the drug made it unattractive to recreational users. These very same features are true of sacramental use of peyote by Native Americans, which has led numerous states and the federal government to exempt such peyote use from their drug laws. The role of the RFRA statute is to ensure that when a similar claim, such as UDV's, cannot get a legislative hearing because the group is less familar or less adept at lobbying, the courts will declare an equal right to free exercise for that faith. (In sharp contrast is the uncircumscribed use of marijuana, a widely trafficked drug, by other groups claiming religious freedom; these claims always lose, even under the higher standard of RFRA.)

The federal government does not challenge the validity of the RFRA statute; the Bush administration wants to be able to defend religious freedom when it is more popular. Instead, the government offers an interpretation of the statute that would gut its effectiveness. The government argues that the mere listing of a drug on the schedule of controlled substances proves that there is a "compelling" reason to prohibit it in any and all circumstances -- without regard to the kind of evidence described above concerning the limited risks from the UDV's use. Essentially, the government says that the mere existence of a law is proof that it serves a compelling interest in all cases. Although the government tries to limit this argument to drug cases, its implications go much further. As Judge Michael McConnell -- a Bush appointee, and no wild-eyed radical -- argued in the court of appeals decision ruling for UDV:

Congress’s general conclusion that DMT is dangerous in the abstract does not establish that the government has a compelling interest in prohibiting the consumption of

hoasca under the conditions presented in this case. . . .

RFRA requires

the government

to "demonstrate[]" that application of a challenged federal law to religious exercise satisfies strict scrutiny under RFRA. 42 U.S.C. § 2000bb-1(b). The term "demonstrates" is defined as "meet[ing] the burdens of going forward with the evidence and of persuasion." Id., § 2000bb-2(3). Obviously, Congress contemplated the introduction of "evidence" pertaining to the justification of "application" of the law in the particular instance. If such a burden of proof could be satisfied by citing congressional finding in the preambles to statutes, without additional evidence, RFRA challenges would rarely succeed; congressional findings invariably tout the importance of the laws to which they are appended.

If the government's position prevails in UDV, then potentially almost any claim of religious freedom as against a generally applicable law would fail. Amish parents were allowed to remove their teenagers from high school in lieu of informal vocational education (Wisconsin v. Yoder, 406 U.S. 205 (1972)) because, even though education in general is an important state interest, a couple extra years of formal education was not shown to be crucial to the development of Amish children. Formal teacher credentials are generally important for the public-school and private-school teachers handling significant numbers of students, but that does not mean they have to be applied rigidly to home-schooling parents who have close relationships with a small number of students, their children. These and numerous other successful religious-freedom claims would fail under the standard that the federal government advocates in UDV. (For input from several Christian organizations that are theologically light years from the UDV but support its right to practice its faith, see this amicus brief.)

This case concerns far more than just a tiny group practicing an unfamilar faith and consuming a hallucinogenic substance. It concerns far more than drugs and the war on them. It will affect the freedom of religions across the spectrum when they come in conflict with the huge range of federal laws and regulations.

Both of these pieces--the first by Charles Curran, the second by Cathleen Kaveny--are from the May 6th issue of Commonweal. I have provided a link to each piece below.

A Call for Dissent

My argument with Joseph Ratzinger

Charles E. Curran

Habemus papam.
I heard these words in St. Peter’s Square as a young seminarian on
October 28, 1958. My first impression of Pope John XXIII was
disappointing. Pope Pius XII was an austere and ascetic figure, but
John XXIII was a roly-poly Italian who was waving to the crowd even
before he finished his first blessing.

Fast-forward to the present: The intervening years saw
John XXIII’s and Vatican II’s call for renewal and reform; the
unexpected condemnation of artificial contraception in Paul VI’s Humanae vitae (1968); the ups and downs in his Hamlet-like papacy; and then the long restorationist papacy of John Paul II.

I sat in a television studio on April 19, 2005, and once again heard the words habemus papam-Joseph
Ratzinger as Pope Benedict XVI. My disappointment was much greater than
it was fifty years earlier. As prefect of the Congregation for the
Doctrine of the Faith (CDF), Ratzinger concluded a seven-year
investigation of my theological writings in 1986 with the judgment,
approved by John Paul II, that “one who dissents from the magisterium
as you do is not suitable nor eligible to teach Catholic theology.”

I maintained that my dissent was not from core tenets
of Catholic faith, but from noninfallible church teachings. In fact,
the U.S. bishops in their 1968 pastoral letter Human Life in Our Day
recognized the legitimacy of such dissent if there are serious reasons
for it, if the teaching authority of the church is not impugned, and if
scandal is not given. My dissent satisfied those criteria. So I asked
Cardinal Ratzinger, “Is theological dissent from noninfallible church
teaching ever permitted; and, if so, under what conditions is it
permitted?” He refused to answer.

I have met Pope Benedict XVI
only once. It was seventeen years ago, when I was a graduate student at
Yale. Richard John Neuhaus had organized an invitation-only conference
in New York on biblical interpretation. Among the invited guests were
Cardinal Joseph Ratzinger, Raymond Brown, the widely respected biblical
scholar, and the eminent Lutheran theologian George Lindbeck, my
dissertation adviser, who had been a delegated observer at the Second
Vatican Council. With the breezy temerity of youth, I wrote Neuhaus
(then still Lutheran), and asked to be the “observer from the next
generation” at the conference. Much to my amazement, he acceded to my
request.

During the first break, Lindbeck introduced me to
Cardinal Ratzinger. The conversation went something like this: Lindbeck
said, “Your eminence, I would like to introduce to you Cathleen Kaveny,
a Catholic studying moral theology at Yale.” I smiled and said hello.
Ratzinger smiled at me and responded, “A Catholic studying moral
theology at Yale? You’d better be careful or you’ll have the
Congregation after you.” I couldn’t believe my ears. After all, I had
just heard, while wide awake, what Cardinal Ratzinger--the Grand
Inquisitor--would say to me in a nightmare, which naturally would also
include a stake, a match, a heap of kindling, and a long, flowing white
dress (à la Cecil B. De Mille’s The Story of Joan of Arc).
He was joking, of course, as I realized almost immediately.
Nonetheless, my face must have turned as pale as Joan’s dress. The
cardinal quickly understood the problem: “With whom are you studying?”
he asked. And not quite able to speak again, I pointed mutely to
Lindbeck. Ratzinger said, “Well, then, that’s all right...you’re in
good hands.”

After the break, Neuhaus invited me to sit at the table
for the remainder of the conference. But there was only one open seat,
right next to Ratzinger himself. I took it with some trepidation. What
sort of being was this man? Gradually, I relaxed, as I realized that by
virtue of my undergraduate and graduate training, I was already quite
familiar with the universal type, if not this particular German model.
He was a real academic, delighting in the world illumined by his
beloved texts, which conveyed a reality that seemed to be more vivid to
him than the reality conveyed by his own senses. In his discussion with
Lindbeck and Brown, I saw immense mutual respect, significant mutual
challenge, and not a trace of condescension or rank-pulling on his
part. I also got the distinct impression that Ratzinger was relishing
the intellectual exchange, much as a professor swamped with
departmental administrative responsibilities relishes the all-too-rare
opportunity to participate in colloquium on a key topic in his or her
own academic field. He also seemed quite shy, in the peculiar,
nonretiring manner that many academics are shy: they fearlessly present
the contents of their minds for public examination while closely
guarding the paths of their hearts.

The prefect of the Congregation for the Doctrine of the Faith, in an interview with the Italian Catholic agency SIR, said that world economic affairs are driven by a form of economic liberalism which "specifically excludes the heart." More important, he continued, this outlook also excludes "the highest faculty of human intelligence," which is "the possibility of seeing God, of introducing the light of moral responsibility, love, and justice into the worlds of work, of commerce, and of politics."

Much attention has been given to the 1984 Instruction on Certain Aspects of "Liberation Theology" (available in full here), in which the Congregation for the Doctrine of the Faith, under Ratzinger, criticized many features of liberation theology. A few key passages:

The present Instruction has [as its purpose] to draw the attention of pastors, theologians, and all the faithful to the deviations, and risks of deviation, damaging to the faith and to Christian living, that are brought about by certain forms of liberation theology which use, in an insufficiently critical manner, concepts borrowed from various currents of Marxist thought.

This warning should in no way be interpreted as a disavowal of all those who want to respond generously and with an authentic evangelical spirit to the "preferential option for the poor." It should not at all serve as an excuse for those who maintain the attitude of neutrality and indifference in the face of the tragic and pressing problems of human misery and injustice. It is, on the contrary, dictated by the certitude that the serious ideological deviations which it points out tends inevitably to betray the cause of the poor. More than ever, it is important that numerous Christians, whose faith is clear and who are committed to live the Christian life in its fullness, become involved in the struggle for justice, freedom, and human dignity because of their love for their disinherited, oppressed, and persecuted brothers and sisters. More than ever, the Church intends to condemn abuses, injustices, and attacks against freedom, wherever they occur and whoever commits them. She intends to struggle, by her own means, for the defense and advancement of the rights of mankind, especially of the poor. . . .

The acute need for radical reforms of the structures which conceal poverty and which are themselves forms of violence, should not let us lose sight of the fact that the source of injustice is in the hearts of men. Therefore it is only by making an appeal to the 'moral potential' of the person and to the constant need for interior conversion, that social change will be brought about which will be truly in the service of man. [33] For it will only be in the measure that they collaborate freely in these necessary changes through their own initiative and in solidarity, that people, awakened to a sense of their responsibility, will grow in humanity. The inversion of morality and structures is steeped in a materialist anthropology which is incompatible with the dignity of mankind. . . .

The class struggle as a road toward a classless society is a myth which slows reform and aggravates poverty and injustice. Those who allow themselves to be caught up in fascination with this myth should reflect on the bitter examples history has to offer about where it leads. They would then understand that we are not talking here about abandoning an effective means of struggle on behalf of the poor for an ideal which has no practical effects. On the contrary, we are talking about freeing oneself from a delusion in order to base oneself squarely on the Gospel and its power of realization.

But in addition to this substantially critical letter, the CDF under Ratzinger issued a second document in 1986, the Instruction on Christian Freedom and Liberation, which sets forth a positive vision on, among other things, economic matters. To keep this post from reaching unacceptable length, I'll post passages from that document separately.

[MOJ readers may be interested in following the link below.]Pope Benedict XVI on the Church's Role in Public LifeThe Pew Forum on Religion & Public Life has collected a variety of resources on Pope Benedict XVI's views on public policy issues. The resources include links to his homilies and other writings on such issues as social justice, the participation of Catholics in political life, proposals to give legal recognition to same-sex unions, and the role of women in public life.

Meet thePress had a very interesting discussion last Sunday on the new Pope and the future of the Church (transcript here). Thomas Cahill (author of The Gifts of the Irish and other popular books) made the familiar complaints about the Church's opposition "to masturbation, premarital sex, birth control (including condoms used to prevent the spread of AIDS), abortion, divorce, homosexual relations, married priests, female priests and any hint of Marxism." Jody Bottum of the Weekly Standard responded as follows:

You know, one of the great problems here is that in that litany, for instance, that Mr. Cahill gave, of things that he wants, only the very last item and that understated a hint of Marxism had anything to do with economics. The great narrowing of the liberal tradition has come down to almost all having to do with sex and gender. One of the great underreported facts about the new pope is that he actually stands to the left of his predecessor on economic issues. He came out of Germany where they always thought they were going to split the difference between Marxism and capitalism anyway...

MR. RUSSERT: A social democratic tradition.

MR. BOTTUM: Right. And he is to the left of him. If the 1991 encyclical from John Paul I [sic], Centesimus annus, might be described as three cheers for democracy, two cheers for capitalism. Ratzinger, now Benedict XVI, would have gave only one cheer, but you wouldn't know that from all of the coverage that describes him as hard-liner, conservative, authoritarian because the great liberal tradition even within the church, even Mr. Cahill speaks for, has been narrowed down until it's all just about sex.

Two comments: First, Bottum seems dead right about the increasingly narrowed focus of the "progressive" tradition and the Democratic Party on matters of sexual autonomy. Notice, for example, that what seems to get so many liberal pundits the most upset is not persisting poverty or world hunger, but rather the Christian right "imposing its morality on others." And to to be a "moderate" or "new" Democrat these days mostly means that you (a) keep the commitment to unrestricted abortion and (b) become more like the Republicans on economic issues such as upper-bracket tax cuts. The missing perspective in American politics is the one that is "traditionalist" on sex and family issues but "progressive" on economic issues. Whatever you ultimately think of that perspective on its merits, its relative absence has left a noticeable, and I think very unfortunate, hole in American political discourse.

Second, I'm interested to learn more about Pope Benedict's past writings on economic issues. Bottum is certainly right that there's been almost no reporting of this angle; is he right in his characterization of the Benedict's past positions ("to the left of" John Paul II)? I'm going to go looking for the information; but in the meantime, readers' input welcome.

Here is a link to Charlie Rose's interview of Fr. Lorenzo Albacete. (Thanks to Amy Welborn for the heads-up). Here is an excerpt that is relevant to our ongoing conversation about law and "moral anthropology":

LORENZO ALBACETE: [The cardinals] really realized that we are living in a moment in which once again what is at stake is what does it mean to be a human being?

CHARLIE ROSE: A human being or a Christian?

LORENZO ALBACETE: A human being, a human being. No, not a Christian.

CHARLIE ROSE: What does it mean to be human? What does it mean to be human today?

LORENZO ALBACETE: What does it mean to be human today. And then what is—what is the exact nature of our unity to transcendence and the mystery? All these things are up for grabs today.

A few days ago, I mentioned an essay and book by Joel Kotkin, author of "The City: A Global City," raised the matter of (what I regard as) the failure of the New Urbanism to take seriously enough the place and role of religion in urban life and institutions. The latest issue of The Weekly Standard also includes an essay (subscription required) by Kotkin, "Sects and the City," focused on this particular matter. Here is an excerpt:

[The] retreat from religion is one of the least understood and discussed aspects of the relative decline of the great cities of the West. To be sure, there are many other, more tangible causes--the rise of the Internet, the generations-long flight of the middle class to the suburbs, fear of terrorism. But the decline of religious community may reflect a deeper malaise that could weaken the very spirit of urban culture.

Churches, synagogues, temples, and mosques provide critical ballast for cities. In an often impersonal and challenging environment they offer a place of refuge and solace, a means of gradual assimilation for the newly arrived, and, perhaps most important, an alternative setting for the inculcation of values in the new generation. . . .

[I]n this secular era, it is difficult to recapture the centrality of religion during most of urban history. Religious structures--temples, cathedrals, mosques, and pyramids--dominated the landscape of great cities and the imagination of their occupants. These sacred buildings made visible cities' connections to divine forces controlling the world.

Today cities are dominated instead by towering commercial buildings and evocative cultural and governmental structures. Such sights can inspire a sense of civic pride or awe. "A striking landscape," historian Kevin Lynch once suggested, "is the skeleton" in which city dwellers construct their "socially important myths."

Yet memorable architecture and urban "myths" lack a critical component of urban life that religion provides: It is a source of moral order and spiritual sustenance.The earliest city dwellers confronted problems vastly different from those faced in prehistoric nomadic communities and agricultural villages. Urbanites had to learn how to co-exist and interact with strangers from outside their clan or tribe. This required them to develop new ways to codify behavior and determine what would be commonly acceptable in family life, commerce, and social discourse. In doing so, they drew on their religious heritage--not only in the West but virtually everywhere. The earliest cities in India, China, and Mesoamerica all displayed similar attachment to religious principles, suggesting, as the American historian T.R. Fehrenbach notes, the existence of a common sensibility among early city-builders in all parts of the world. . . .

Without the force of religion, as a driver of self-improvement and moral order, cities in America, Europe, and elsewhere cannot flourish. These places may own the name and inhabit the space of the great cities of the past, but without faith and family, they cannot be the vital centers of civilization that cities have been for the last five millennia.

Kotkin is really onto something, I think. In the spirit of Linda Richman: "Urbanism" without religion is good for neither cities nor religion. Discuss.

I have just posted a paper to SSRN. The title: Capital Punishment and the Morality of Human Rights. This paper will soon appear in the Journal of Catholic Legal Studies, which is the new name for what used to be known as The Catholic Lawyer. The Journal is edited by law students at St. John's University School of Law.

Here, as it appears on SSRN, is the abstract:

According to the morality of
human rights, every human being has inherent dignity and is inviolable. In a
paper I posted on SSRN last month, I inquired whether there is a nonreligious
ground for the morality of human rights. To see that paper, click here.

In this paper, I pursue the implications of the morality of human rights for
the issue of capital punishment. Should we who affirm the morality of human
rights, because we affirm it, want the law to protect human beings from--by
giving them a right to be free from--capital punishment. One of the most
prominent and powerful voices against capital punishment in recent years was
that of Pope John Paul II, whose position was more radical--more oppositionist--than the official position of the Roman Catholic Church. In this paper, I
present John Paul II's position and then explain why I am unable to embrace it.
I then present an alternative position--an alternative reason why we who affirm
the morality of human rights should oppose capital punishment.

This paper, which was the basis for a lecture I presented at St. John's University on October 13, 2004, is drawn from a book-in-progress, tentatively
titled HUMAN RIGHTS AS MORALITY, HUMAN RIGHTS AS LAW._________________________